Shtyrkova v. Gorbunov
| Decision Date | 28 July 2014 |
| Docket Number | No. 2 CA-CV 2013-0163,2 CA-CV 2013-0163 |
| Parties | YEKATERINA SHTYRKOVA, Petitioner/Appellant, v. DENIS A. GORBUNOV, Respondent/Appellee. |
| Court | Arizona Court of Appeals |
This Decision Does Not Create Legal Precedent And May Not Be Cited Except As Authorized By Applicable Rules.
Not For Publication
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
The Honorable Margaret L. Maxwell, Judge Pro Tempore
AFFIRMED
Karp & Weiss, P.C., Tucson By Adam C. Page Counsel for Petitioner/Appellant
West, Elsberry, Longenbaugh & Zickerman, PLLC, Tucson By Anne Elsberry Counsel for Respondent/Appellee
Presiding Judge Miller authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brammer1 concurred.
¶1 Yekaterina Shtyrkova appeals from the trial court's ruling granting primary physical custody of her child to the child's father, Denis Gorbunov. She argues the court violated her right to due process when it imposed a time limit on her presentation of evidence at the hearing; it improperly took judicial notice of the child's school calendar; it failed to make sufficient findings of fact on the record pursuant to A.R.S. § 25-403(B); and, the findings it made were erroneous. For the reasons below, we affirm the judgment.
¶2 We view the facts in the light most favorable to upholding the trial court's ruling. See Little v. Little, 193 Ariz. 518, ¶ 5, 975 P.2d 108, 110 (1999). In 2003, Shtyrkova and Gorbunov, then-Tucson residents, had a child together, D. A 2006 paternity order established Gorbunov as the father. The parties never married.
¶3 In 2007, during the last year of her degree program at the University of Arizona, Shtyrkova received a scholarship that was contingent upon her working in Albuquerque, New Mexico for one year after graduation. In 2008, Shtyrkova and Gorbunov entered into an agreement regarding parenting time. The stipulation provided that D. would attend the first semester of kindergarten with Shtyrkova in Albuquerque and the second semester withGorbunov in Tucson. D. was to spend half of the summer with each parent.
¶4 In May 2010, after she was accepted to a doctoral program at the Massachusetts Institute of Technology, Shtyrkova filed a motion to modify parenting time and a petition for relocation. The trial court granted her motion, allowing her to relocate to Massachusetts with D. The court ordered that D. was to attend school with Shtyrkova in Massachusetts for the first half of each school year and with Gorbunov in Tucson for the second half of each school year. Gorbunov challenged the court's ruling before this court, and we affirmed the judgment. See Shtyrkova v. Gorbunov, No. 2 CA-CV 2010-0199 (memorandum decision filed June 17, 2011). The parents extended this schedule through the 2012-13 school year.
¶5 In spring 2013, Gorbunov moved to California for work. Several months later, Shtyrkova filed a second petition to modify parenting time. At an evidentiary hearing on the petition, Shtyrkova asserted it was no longer in D.'s best interests to have to change schools each semester and argued she should have primary physical custody. She presented evidence and testimony, including the 201314 academic calendar of the elementary school D. had attended in Massachusetts. About fifty minutes into Shtyrkova's testimony, the trial judge informed her that she had ten more minutes to finish presenting her case, in order "to divide the time equally" between the parties. Shtyrkova requested extra time or a continuance, but the court denied her requests. After Shtyrkova's testimony, Gorbunov testified and presented evidence, but the academic calendar of the elementary school that D. would attend in California if Gorbunov was granted primary physical custody was neither offered nor admitted in evidence.
¶6 The trial court found that it was in D.'s best interests to live primarily with Gorbunov in California and attend school there and to live with Shtyrkova in Massachusetts during most school breaks. Comparing the academic calendars of the Massachusetts and California schools, the court found that the California schedule allowed more parenting time for the non-primary residential parent than if the child attended school in Massachusetts.
¶7 Shtyrkova filed a motion for reconsideration, arguing the trial court should not have considered the California school's calendar; alternatively, it incorrectly read it. She also argued the time limit at the hearing prevented her from presenting further testimony that was important to her case, although she did not specify what that testimony would have been. The trial court summarily denied Shtyrkova's motion for reconsideration, and she timely appealed.2 We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
¶8 Shtyrkova argues the trial court erred in considering an exhibit not admitted in evidence: the academic calendar of the school D. would attend if he were to live with Gorbunov in California during all or part of the school year. The California school calendar was neither offered nor admitted in evidence.3 Onthe record before us, it appears the court took judicial notice of the calendar because its under-advisement ruling included findings of fact explicitly referring to and relying upon the calendar. See Ariz. R. Evid. 201(c)(1); Higgins v. Higgins, 194 Ariz. 266, ¶¶ 19-20, 981 P.2d 134, 139 (App. 1999). Having concluded the court took judicial notice of the California school's calendar, we therefore must determine whether such notice was proper. See Higgins, 194 Ariz. 266, ¶¶ 19-21, 981 P.2d at 139. We review a trial court's decision to take judicial notice for an abuse of discretion. See id. ¶ 25.
¶9 Rule 201(b), Ariz. R. Evid., provides: "The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." It is undisputed that the first part of the rule does not apply in the present case—the academic calendar of a particular California elementary school is not generally known within Pima County. Cf. Univ. of Ariz. v. Pima Cnty., 150 Ariz. 184, 188, 722 P.2d 352, 356 (App. 1986) (); Williams v. Stewart, 145 Ariz. 602, 603, 703 P.2d 546, 547 (App. 1985) (); Beck v. Jaeger, 124 Ariz. 316, 317, 604 P.2d 18, 19 (App. 1979) (). We therefore examine whether judicial notice of the calendar was proper under Rule 201(b)(2), Ariz. R. Evid.
¶10 Shtyrkova asserts judicial notice was improper under Rule 201(b)(2) because the California school calendar is subject to reasonable dispute. She relies on Higgins, in which this court held that a trial court abused its discretion in taking judicial notice of the purported fact that one spouse's adulterous cohabitation necessarily had a "very serious and harmful detrimental effect upon the children." 194 Ariz. 266, ¶¶ 19-21, 25, 981 P.2d at 271-72. The courtin Higgins reasoned that because this claim was neither generally known nor accurately and readily determined, judicial notice was improper. Id. But here, in contrast, the California school's academic calendar can readily and accurately be determined by resort to sources—such as the school's official website or the school's administrative personnel4—whose accuracy cannot reasonably be questioned; therefore, the calendar is not subject to reasonable dispute. Cf. Demer v. IBM Corp. Ltd. Plan, 975 F. Supp. 2d 1059, 1081 n.9 (D. Ariz. 2013)5 (); Francarl Realty Corp. v. Town of East Hampton, 628 F. Supp. 2d 329, 332 n.3 (E.D.N.Y. 2009) (), vacated in part on other grounds, 375 Fed. App. 145 (2d Cir. 2010).
¶11 We further note Shtyrkova does not dispute the factual accuracy or authenticity of the California school calendar. Rather, she argues the trial court made factual errors in its comparison of the California and Massachusetts school calendars.6 Because there is noreasonable dispute as to the California school calendar's factual accuracy, authenticity, or reliability, we conclude the court did not abuse its discretion by taking judicial notice of the calendar. Ariz. R. Evid. 201(b)(2) and (c)(1).
¶12 Shtyrkova next argues that even if judicial notice of the calendar were proper, she was deprived of an opportunity to be heard as to the propriety of such judicial notice. She contends that under Rule 201(e), Ariz. R. Evid., she was entitled, as a matter of law, to an evidentiary hearing on her motion for reconsideration, including an opportunity to testify about the California school's calendar and to question Gorbunov regarding the calendar. We review the interpretation of a rule de novo, Schwab Sales, Inc. v. GN Const. Co., 196 Ariz. 33, ¶ 3, 992 P.2d 1128, 1130 (App. 1998), and we review a court's ruling on a motion for reconsideration for an abuse of discretion, see McGovern v. McGovern, 201 Ariz. 172, ¶ 6, 33 P.3d 506, 509 (App. 2001).
¶13 A trial court may take judicial notice at any stage of the proceeding, even without first notifying a party. Ariz. R. Evid. 201(d) and (e). Upon timely request, a party is entitled to be heard regarding the propriety of taking judicial notice, including a request after the fact if the court took judicial notice before notifying the party. Ariz. R. Evid. 201(e). However, a...
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